In a recent case, the Board of Alien Labor Certification Appeals considered issues of form vs. substance, applying the concept of Fundamental Fairness (aka Due Process) to some highly technical issues. The case, "Steve's Bakery and Cuchirfrito Corp, 2010-PER-844, was decided on March 9, 2011.

In the first instance, an Employer responded to a denial of certification using the title "Request to Review." As such, the CO forwarded the file to BALCA for appeal.

The Employer, who had wanted reconsideration by the CO, and not an appeal to BALCA, wrote a letter to the Board requesting and clarifying that it was seeking reconsideration. The CO argued that that had the Employer entitled its response to denial "request for reconsideration" and "request for review," the case would have been reconsidered, or if the Employer had written nothing, the case would have been reconsidered, but since the Employer wrote, "request to review," the case was sent to BALCA for review, without the intervening process of reconsideration by the CO.

Confronted with these terms of art, the Board considered how and when Motions reqiests fpr reconsideration may be treated as Requests for Reconsideration or Review.

The Board noted that the CO has the discretion to refuse to reconsider an application "sub silentio" by simply passing it on to the Board silently and without comment. This is authorized by the regulations, 20 CFR 656.24(b)(4), which state that when a motion for reconsideration is filed with the CO, he/she has the discretion to either reconsider the denial determination or treat the employer's request as a request for review by the Board of Alien Labor Certification Appeals.

In some instances, a reconsideration is appropriate, instead of an appeal to the Board, where the employer needs to develop a factual record upon which the denial was denied, but, the Board stated that it held that a CO will not be found to have precluded an employer from developing the necessary factual record where the regulations would not have permitted the employer to supplement the record (referencing the regulation describing what documentation can be used to support a motion for reconsideration). This was discussed in a previous BALCA case, In the matter of Denzil Gunnels, 2010-PER-628 (November 16, 2010).

Reasoning along these lines In the instance case, the Board was reviewing the issue of a response missing from Section M-1. This question on Form 9089 asks whether the application was completed by the Employer?  The answer required is "Yes" or "No," but here the answer was left blank. Since the application was sent in by mail, the computerized system did not alert the Employer about the missing answer. The issue presented is whether the missing response could be amended after the fact. The law, 20 CFR Sec. 656.11(b), provides that "requests for modifications to an application will not be accepted for applications submitted after July 16, 2007."

First, the Board ruled that the CO did not abuse his discretion for treating the Employer's "request to review" as a request for appeal to BALCA, and not as a request for reconsideration.

Secondly, the Board found that the failure to check Question M-1 on the Form 9089 could not be material, since the attorney had completed the remainder of Section "M" and had signed under penalty of perjury that he had prepared the application. The Board found that there was a difference between filling out Section M-1 on line, since the certification is not signed and dated until after a certification is granted. But the Board reasoned that where the application was filed by mail, and signed and dated by the parties, " it is not clear what purpose Section M-1 serves."

The Board decided it would not rule that the response to M-1 is not material, but would remand to the Certifying Officer to determine whether it was material or not.

The Board's holding stated, "In remanding this case for reconsideration, we wish to emphasize that we have not made a finding whether failure to make a selection in Section M-1 is or is not material under the circumstances of this case. Rather, the point is that it does not appear to be a material reconsideration, and without an explanation from the CO as to why it is a material consideration, we decline to affirm the denial. Neither are we prepared to reverse the denial beacuse the record is silent as to the import of Section M-1 for a mailed in application. Remand is an opportunity for the CO to consider the issue and either find that it was not a material omission, or to provide an explanatino as to why it was important to the CO's review of the application."

The interesting fact in this case is that the determination of materiality is akin to a determination of harmless error, which has been officially rejected by the DOL, but, which nevertheless continues to live on under the concept of Fundamental Fairness.